In re H.V. , 2012 Ohio 3742 ( 2012 )

[Cite as In re H.V., 2012-Ohio-3742.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: H.V. C.A. Nos. 11CA010139
11CA010140
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE Nos. 10 JV 30861 & 11 JV 34396
DECISION AND JOURNAL ENTRY
Dated: August 20, 2012
WHITMORE, Presiding Judge.
{¶1} Appellant, H.V., appeals from judgments of the Lorain County Court of Common
Pleas, Juvenile Division. This Court affirms.
I
{¶2} In December 2010, in case number 10JV30861, the trial court found H.V. to be a
delinquent child for committing the offense of attempted domestic violence, a felony of the
fourth degree. The court sentenced H.V. to the custody of the Ohio Department of Youth
Services (“DYS”) for an indefinite period of six months to twenty-one years of age. H.V. was
released on parole approximately three months later.
{¶3} While still on parole, the trial court found H.V. to be a delinquent child in case
number 11JV34396, for committing the offense of felonious assault, a felony of the second
degree. The court sentenced H.V. to the custody of DYS for an indefinite period of one year up
until the age of twenty-one. The court also revoked H.V.’s parole for the domestic violence case,
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and sentenced H.V. to a minimum of 90 days in the custody of DYS, to be served consecutively
to his sentence for the felonious assault. H.V. now appeals and raises four assignments of error
for our review.
II
Assignment of Error Number One
THE JUVENILE COURT ERRED IN COMMITTING THE YOUTH TO THE
OHIO DEPARTMENT OF YOUTH SERVICES FOR A PERIOD LONGER
THAN THIRTY DAYS FOR A PAROLE VIOLATION.
{¶4} In his first assignment of error, H.V. argues that the court erred in sentencing him
to 90 days in the custody of DYS for a parole violation. Specifically, H.V. argues that the statute
only permits the court to commit him to DYS for 30 days. We disagree.
{¶5} If the court determines that a child on supervised release has committed a serious
violation of a term or condition of his or her release, the court may revoke the child’s release and
order the child returned to DYS. R.C. 5139.52(F). R.C. 5139.52(F) states, in relevant part, that
“[i]f the court orders the child to be returned to a department of youth services institution, the
child shall remain institutionalized for a minimum period of thirty days * * *.”
{¶6} H.V. argues that the plain language of R.C. 5139.52(F) restricts the court’s ability
to sentence him for his parole violation. Specifically, H.V. argues that the court is without
authority to sentence him to any term longer than 30 days for a parole violation. We have
previously rejected this argument, and do so again today.
{¶7} R.C. 5139.52(F) prohibits a child from being released from DYS in less than 30
days, but does not limit the court from imposing a sentence longer than 30 days. In re T.K., 9th
Dist. No. 26076, 2012-Ohio-906, ¶4-11. Accord In re D.B., 8th Dist. No. 97445, 2012-Ohio-
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2505, ¶18-19; In re A.N., 11th Dist. Nos. 2011-A-0057 & 2011-A-0058, 2012-Ohio 1789, ¶10-
13. Accordingly, H.V.’s first assignment of error is overruled.
Assignment of Error Number Two
THE JUVENILE COURT ERRED IN COMMITTING THE YOUTH TO A
CONSECUTIVE SENTENCE.
{¶8} In his second assignment of error, H.V. argues that the court erred when it ran his
sentences consecutively. Specifically, H.V. argues that R.C. 2152.17(F) does not allow his
parole violation to be run consecutively to the felonious assault because the parole violation
would not be a felony if committed by an adult. H.V. argues that (1) the parole violation is not a
new felony, but instead is an administrative rule violation, and therefore, does not implicate R.C.
2152.17(F) and (2) without R.C. 2152.17(F) the court was not permitted to run his sentences
consecutively. We agree that R.C. 2152.17(F) is not applicable, but disagree that the court
lacked authority to run H.V.’s sentence for his parole violation consecutively.
{¶9} R.C. 2152.17(F) states, in relevant part:
[i]f a child is adjudicated a delinquent child for committing two or more acts that
would be felonies if committed by an adult and if the court entering the delinquent
child adjudication orders the commitment of the child for two or more of those
acts to the legal custody of the department of youth services for
institutionalization * * *, the court may order that all of the periods of
commitment imposed under those sections for those acts be served consecutively
in the legal custody of the department of youth services * * *.
R.C. 2152.17(F) only applies when the child has been adjudicated delinquent for the commission
of two or more acts that would be felonies. H.V. was adjudicated delinquent in 2010 for an act
that constituted attempted domestic violence. H.V. was subsequently released on parole and
committed another act which constituted felonious assault. The court adjudicated him delinquent
for that single act of felonious assault. Because the court was not, at that time, adjudicating H.V.
delinquent for two or more acts, R.C. 2152.17(F) does not apply. However, just because R.C.
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2152.17(F) does not apply that fact does not necessitate the conclusion that the court was without
authority to sentence H.V. to consecutive sentences for his parole violation.
{¶10} “[A] juvenile court has broad discretion to craft an appropriate disposition for a
child adjudicated delinquent.” In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, ¶6. A juvenile
court may commit a child to the custody of DYS for an indefinite term, not to exceed the child’s
twenty-first birthday. R.C. 2152.16.
The juvenile court, however, must impose dispositions which are reasonably
calculated to achieve the overriding purpose [of R.C. 2152.01(B)] * * *. The
overriding purposes for dispositions include providing the care, protection, and
mental and physical development of the delinquent child; holding the offender
accountable for his actions; restoring the victim; and rehabilitating the offender.
(Internal citations and quotations omitted.) In re J.P., 9th Dist. No. 24538, 2009-Ohio-
3974, ¶8. The court has the inherent power to run parole violations consecutive to
sentences for new crimes. See State ex. rel. Young v. Ohio Adult Parole Authority, 24
Ohio St.2d 67, 68 (1970), citing Jordan v. Maxwell, 1 Ohio St.2d 76 (1965).
{¶11} A juvenile court’s order of disposition will not be reversed absent an abuse of
discretion. In re D.S. at ¶6. An abuse of discretion implies that the trial court’s attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). When applying the abuse of discretion standard, this Court may not substitute its
judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶12} H.V. was adjudicated a delinquent child for attempted domestic violence, a felony
of the fourth degree if committed by an adult. H.V. was sentenced to the custody of DYS for six
months to age twenty-one. He was later paroled. Subsequently, H.V. was adjudicated a
delinquent child for felonious assault, a felony in the second degree if committed by an adult,
and the court revoked his parole for the domestic violence case. In sentencing H.V. for his
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violation of parole, the court had the inherent authority to run his sentence consecutive to his
sentence for the new offense of felonious assault.
{¶13} At the dispositional hearing, the probation department, DYS, and H.V.’s mother
all expressed concern for H.V.’s safety and requested the court commit H.V. to the custody of
DYS. After reviewing the record, we cannot conclude that the court abused its discretion in its
order of disposition. Accordingly, H.V.’s second assignment of error is overruled.
Assignment of Error Number Three
PLAIN ERROR WAS COMMITTED WHEN TRIAL COUNSEL FAILED TO
OBJECT TO THE JUVENILE COURT’S IMPROPER SENTENCE.
{¶14} In his third assignment of error, H.V. argues that his counsel committed plain
error when he failed to object to his sentence of more than 30 days for his parole violation, and
when it ran his sentences consecutively. Because of the reasons set forth above in assignments
of error one and two, we conclude the court did not err, and therefore, cannot find plain error.
H.V.’s third assignment of error is overruled.
Assignment of Error Number Four
APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF
TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE
CONSTITUTION AND OHIO CONSTITUTION.
{¶15} In his fourth assignment of error, H.V. argues that his counsel was ineffective for
failing to object to the alleged sentencing errors. Because we have concluded that the court did
not err in sentencing, we cannot conclude that counsel was ineffective for failing to object.
H.V.’s fourth assignment of error is overruled.
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III
{¶16} H.V’s assignments of error are overruled. The judgments of the Lorain County
Court of Common Pleas, Juvenile Division, are affirmed.
Judgments affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS.
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BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.
{¶17} With respect to H.V.’s second assignment of error, I concur that R.C. 2152.17(F)
does not apply for the reasons stated in the main opinion. I note that H.V. has based his
argument entirely on the notion that R.C. 2152.17(F) does not apply, without considering the
possibility that other authority would allow such a result. Because I believe there is authority
which would support the trial court’s decision to impose consecutive sentences, I concur in the
majority’s judgment. See In re Caldwell, 76 Ohio St.3d 156 (1996); R.C. 2152.19(A)(8); R.C.
5139.52(F); R.C. 2152.22(E).
APPEARANCES:
KARRI A. PECK, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and CHRIS A. PYANOWSKI, Assistant Prosecuting
Attorney, for Appellee.